Democrat Al Franken gain 87 votes over Republican former U.S. Sen. Norm Coleman this morning, as 351 never-before-counted absentee ballots were opened and counted, bringing Franken’s lead to 312.

Franken’s lawyer said the outcome proved, once again, that Franken got more votes in last year’s election.

“The fact is more people voted for Al Franken than Norm Coleman,” Marc Elias said.

Coleman’s legal spokesman, attorney Ben Ginsberg, said the Coleman campaign was “saddened and disappointed” and cried out for appeal to the Minnesota Supreme Court.

“When you get an election this close, you can’t tell who won,” Ginsberg said. The Coleman team says the Supreme Court can consider constitutional issues not yet resolved.

The new tally marks the expected end of ballot counting in Coleman’s bid to overturn the lead Franken has had all year. A three-judge panel has presided over Coleman’s contest and this morning, those judges oversaw the opening and counting of previously rejected absentee ballots.

A new count of thousands of unopened absentee ballots was to be the centerpiece of Coleman’s challenge, but through a series of decisions, the judges limited the number of such ballots that could be considered.

Today, out of some 11,000 uncounted absentee ballots, 351 were counted.

The ballots counted were a boon to Franken.

The Democrat received 198 votes, Coleman 111, and 42 ballots were placed in the “other” category, after state Director of Elections Gary Poser examined each ballot under the intensely watchful eyes of the judges, attorneys for each candidate and a packed courtroom in the Minnesota Judicial Center on the Capitol grounds.

The three judges — Stearns County’s Elizabeth Hayden, Pennington County’s Kurt Marben and Hennepin County’s Denise Reilly — will likely still rule on other issues before delivering a final order on Coleman’s challenge. Some trial watchers believe that final decision could come as soon as this week.

Under state law, Coleman has 10 days to appeal that decision, and Coleman has said his appeal will come quicker than that.

Ginsberg said an appeal would focus on the idea that the race’s ballots were subjected to different standards. He said they changed over the more-than five months that started when counties began receiving absentee ballots and continued through the Election Day count, canvass, recount and contest before the three judges.

“The court is wrong in its decisions,” Ginsberg said of the panel. “We will appeal those decisions.” Ginsberg said when all the votes are properly counted, he is confident Coleman will be the victor. He said the geographic tilt of now-counted absentee ballots favors Franken, but that if the 4,800 rejected absentee ballots Coleman wants counted were included, there would be more Republican areas included. Other than that general analysis, Ginsberg provided no evidence to support his claim and offered no numerical basis.

Elias said Coleman’s appeal would fail because no matter how you count the ballots, Coleman lost “fair and square.”

After today’s counting, Secretary of State Mark Ritchie, who watched his staffers’ conduct the tally from the courtroom, said an appeal to the state Supreme Court would provide closure on the race. A state appeal could take another month.

Ritchie, a Democrat, said that after that appeal is complete, the winner should be able to receive an election certificate. Minnesota Gov. Tim Pawlenty, a Republican, has said a federal appeal, which could come later, might stay the issuance of an election certificate.

An election certificate, which, in Minnesota, must be signed by the governor and the secretary of state, is the traditional prerequisite for seating in the U.S. Senate.

Dave Orrick reports on state government and politics from the Pioneer Press' Capitol Bureau. When the occasion demands, he's been known to cover topics ranging from hunting to golf. He lives in St. Paul with his wife and son.

Rachel E. Stassen-Berger was a Minnesota Capitol reporter for the Pioneer Press from 2001 to 2009 and again from 2015 to 2017.

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